SUMESA S.A.

Trademark Trial and Appeal Board

Jul 2, 2021

88584024 (T.T.A.B. Jul. 2, 2021)

This Opinion is not a
Precedent of the TTAB
Mailed: July 2, 2021

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re SUMESA S.A.
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Serial No. 88584024
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Maxine L. Barasch of Keohane & Dalessandro PLLC,
for SUMESA S.A.

Jacob Vigil, Trademark Examining Attorney, Law Office 103,
Stacy Wahlberg, Managing Attorney.
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Before Taylor, Wolfson, and Shaw,
Administrative Trademark Judges.

Opinion by Wolfson, Administrative Trademark Judge:

Applicant, SUMESA S.A., seeks registration on the Principal Register of the mark
depicted below:

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for “Soup, namely, chicken broth, chicken bouillon concentrates, and soup
concentrates” in International Class 29 and “Seasonings for soups” in International
Class 30.1
The Trademark Examining Attorney refused registration of Applicant’s mark
under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground of
likelihood of confusion with the registered mark RANCHERO (in standard
characters) for “Food products and ingredients, namely, bouillon and soup mixes” in
International Class 29 and “Seasonings, food ingredients, sauces, and blends of
spices, namely, liquid seasoning, Worcestershire sauce, soy sauce and chicken
flavoring” in International Class 30.2
After the Examining Attorney made the refusal final, Applicant appealed to this
Board. 1 TTABVUE, Appeal Brief at 4 TTABVUE. We affirm the refusal to register.

1 Application Serial No. 88584024 was filed on August 19, 2019, based on Applicant’s
allegation of a bona fide intent to use the mark in commerce under Trademark Act Section
1(b), 15 U.S.C. § 1051(b). The description of the mark reads: “The mark consists of the words
‘SUMESA RANCHERITO.’ The word ‘SUMESA’ appears in white stylized lowercase letters
with a stylized white line around it, all inside a red rounded rectangular shape banner. Below
the banner is the word RANCHERITO in red-filled letters with a black outline and white
space between the red fill and black border. A baby chick is standing to the left of the word
‘RANCHERITO’. The chick is wearing a white chef’s hat and a red and white checkered
bandanna. The chick’s fur is yellow, and legs and beak are orange.” The colors white, red,
black, orange and yellow are claimed as a feature of the mark. The application includes the
translation statement: “The English translation of RANCHERITO in the mark is little
rancher.”

Page references to the application record are to the USPTO’s Trademark Status &
Document Retrieval (TSDR) system. References to the briefs, motions and orders on appeal
are to the Board’s TTABVUE docket system.
2 Registration No. 2956636 issued on the Principal Register on May 31, 2005; renewed. The
registration includes the translation statement: “The English translation of ‘RANCHERO’ is
‘farmer.’”
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I. Likelihood of Confusion

Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), prohibits registration of a
mark that so resembles a registered mark as to be likely, when used on or in
connection with the goods or services of the applicant, to cause confusion, mistake, or
deception of relevant consumers. We base our determination of likelihood of confusion
under Section 2(d) on an analysis of all of the probative facts in evidence that are
relevant to the factors enunciated by the court in In re E. I. du Pont de Nemours &
Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973) (“DuPont”); see also In re Guild
Mortg. Co., 912 F.3d 1376, 129 USPQ2d 1160, 1161-62 (Fed. Cir. 2019).
Varying weights may be assigned to each DuPont factor depending on the evidence
presented. See Citigroup Inc. v. Capital City Bank Grp. Inc., 637 F.3d 1344, 98
USPQ2d 1253, 1261 (Fed. Cir. 2011); In re Shell Oil Co., 992 F.2d 1204, 26 USPQ2d
1687, 1688 (Fed. Cir. 1993) (“[T]he various evidentiary factors may play more or less
weighty roles in any particular determination.”). We have considered each DuPont
factor for which there is evidence and argument. Guild Mortg., 129 USPQ2d at 1161-
62; Cai v. Diamond Hong, Inc., 901 F.3d 1367, 127 USPQ2d 1797, 1800 (Fed. Cir.
2018) (quoting In re Mighty Leaf Tea, 601 F.3d 1342, 94 USPQ2d 1257, 1259 (Fed.
Cir. 2010) (“Not all of the DuPont factors are relevant to every case, and only factors
of significance to the particular mark need be considered.”)).
Two key considerations are the similarities between the marks and the
relatedness of the goods. See Federated Foods, Inc. v. Fort Howard Paper Co., 544
F.2d 1098, 192 USPQ 24, 29 (CCPA 1976) (the “fundamental inquiry mandated by
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§ 2(d) goes to the cumulative effect of differences in the essential characteristics of
the goods and differences in the marks.”); In re FabFitFun, Inc., 127 USPQ2d 1670,
1672 (TTAB 2018). In this case, we also consider the trade channels for the goods, the
classes of consumers to whom the goods are directed and their alleged sophistication.
A. The Goods, Channels of Trade, and Classes of Customers

The second DuPont factor concerns the “similarity or dissimilarity and nature of
the goods or services as described in an application or registration.” Stone Lion
Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1159
(Fed. Cir. 2014); Hewlett-Packard Co. v. Packard Press Inc., 281 F.3d 1261, 62
USPQ2d 1001 (Fed. Cir. 2002); Octocom Sys., Inc. v. Hous. Comput. Servs. Inc., 918
F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990). In comparing the goods, “[t]he issue
to be determined . . . is not whether the goods . . . are likely to be confused but rather
whether there is a likelihood that purchasers will be misled into the belief that they
emanate from a common source.” Helene Curtis Indus. Inc. v. Suave Shoe Corp., 13
USPQ2d 1618, 1624 (TTAB 1989). The third DuPont factor concerns “[t]he similarity
or dissimilarity of established, likely-to-continue trade channels.” Stone Lion, 110
USPQ2d at 1161 (quoting DuPont, 177 USPQ at 567).
Applicant argues that “[i]t is error to consider marks likely to be confused based
simply on that they may be used on food products.” 4 TTABVUE 14. We agree and
must compare the goods as they are identified in the application and registration.
Stone Lion, 110 USPQ2d at 1162. But here, the descriptions of goods in Applicant’s
application and the cited registration broadly identify the products; thus, we may
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presume, not that the goods encompass all food products, but that the goods
encompass all food products of the type identified. See In re Solid State Design Inc.,
125 USPQ2d 1409, 1412-15 (TTAB 2018); Sw. Mgmt., Inc. v. Ocinomled, Ltd., 115
USPQ2d 1007, 1025 (TTAB 2015); In re Hughes Furniture Indus., Inc., 114 USPQ2d
1134, 1137 (TTAB 2015) (“Applicant’s broadly worded identification of ‘furniture’
necessarily encompasses Registrant’s narrowly identified ‘residential and commercial
furniture.’”).
Applicant’s “seasonings for soups” encompass Registrant’s “liquid seasoning” and
“chicken flavoring.” In addition, Applicant’s “chicken broth,” “chicken bouillon
concentrates,” and “soup concentrates” encompass Registrant’s “bouillon and soup
mixes.” Thus, the goods are legally identical in both classes. They are also “presumed
to travel in the same channels of trade to the same class of purchasers” because the
identifications of goods have no restrictions as to nature, type, channels of trade, or
classes of purchasers. In re Viterra Inc., 671 F.3d 1358, 1362, 101 USPQ2d 1905, 1908
(Fed. Cir. 2012) (quoting Hewlett-Packard Co., 62 USPQ2d at 1005)). Because
Applicant’s broadly identified goods encompass some of Registrant’s more narrowly
identified goods and will travel in the same trade channels to the same or overlapping
classes of purchasers, the second and third DuPont factors strongly support a finding
of a likelihood of confusion.
B. The Marks

Under the first DuPont factor, we determine the similarity or dissimilarity of the
marks in their entireties, taking into account their appearance, sound, connotation
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and commercial impression. DuPont, 177 USPQ at 567; see also Stone Lion, 110
USPQ2d at 1160; Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee
En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1692 (Fed. Cir. 2005). “Similarity in any
one of these elements may be sufficient to find the marks confusingly similar.” In re
Inn at St. John’s, LLC, 126 USPQ2d 1742, 1746 (TTAB 2018), aff’d mem., 777 F.
App’x. 516 (Fed. Cir. 2019) (citing In re Davia, 110 USPQ2d 1810, 1812 (TTAB 2014)).
We assess not whether the marks can be distinguished in a side-by-side comparison,
but rather whether their overall commercial impressions are so similar that confusion
as to the source of the goods offered under the respective marks is likely to result.
Coach Servs. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed.
Cir. 2012); see also Mini Melts, Inc. v. Reckitt Benckiser LLC, 118 USPQ2d 1464, 1470
(TTAB 2016); Edom Labs. Inc. v. Lichter, 102 USPQ2d 1546, 1551 (TTAB 2012).
We also note that where, as here, the goods are legally identical in part, the degree
of similarity necessary to find likelihood of confusion need not be as great as where
there is a recognizable disparity between the goods. Century 21 Real Estate Corp. v.
Century Life of Am., 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir. 1992) (“When
marks would appear on virtually identical goods or services, the degree of similarity
necessary to support a conclusion of likely confusion declines.”). See also Bridgestone
Ams. Tire Operations LLC v. Fed. Corp., 673 F3d 1330, 102 USPQ2d 1061, 1064 (Fed.
Cir. 2012) (“When the goods are identical, the appearance of a mark of similar sound,
appearance, or connotation is more likely to cause confusion than if the goods are
significantly different.”); Mighty Leaf, 94 USPQ2d at 1260.
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In comparing Applicant’s composite mark and the registered mark
RANCHERO, the obvious point of similarity is that both include a variation of the
term “rancher-”, i.e., RANCHERO or RANCHERITO. Due to this shared element, the
marks look and sound alike. Further, both marks have similar connotations.
Applicant translates “Rancherito” as the diminutive “little rancher” and the cited
registration translates “Ranchero” as “farmer.” Applicant does not argue a distinction
between rancher and farmer, noting that: “In the cited registration, “RANCHERO,”
alone, according to Merriam-Webster online dictionary, means “rancher.” A rancher
brings to mind a strong person who works on a ranch. The suffix, “ITO,” in
“RANCHERITO” of Appellant’s mark means “little” in Spanish.” 4 TTABVUE 8.
However, Applicant argues that a “little rancher” connotes a child pretending to be a
rancher, and contrasts the terms on this basis. We are unpersuaded by such
argument inasmuch as a diminutive can be used as a token of affection as well.3
Accordingly, we find that RANCHERO and RANCHERITO share a similar
connotation as a person who works on a ranch.

3 At https://www.merriam-webster.com/dictionary/diminutive?utm_campaign=sd&utm_
medium=serp&utm_source=jsonld, accessed July 1, 2021 : “1grammar : indicating small size
and sometimes the state or quality of being familiarly known, lovable, pitiable, or
contemptible —used of affixes (such as -ette, -kin, -ling) and of words formed with them (such
as kitchenette, manikin, duckling), of clipped forms (such as Jim), and of altered forms (such
as Peggy).” The Board may take judicial notice of dictionary definitions, including online
dictionaries that exist in printed format or regular fixed editions. Univ. of Notre Dame du
Lac v. J.C. Gourmet Food Imps. Co., 213 USPQ 594 (TTAB 1982), aff’d, 703 F.2d 1372, 217
USPQ 505 (Fed. Cir. 1983); In re Red Bull GmbH, 78 USPQ2d 1375, 1377 (TTAB 2006).
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The similarities between the marks are particularly evident as the dominant term
in Applicant’s mark is RANCHERITO, and consumers are likely to focus on this term
when viewing Applicant’s mark. Although we consider the marks in their entireties,
“in articulating reasons for reaching a conclusion on the issue of confusion, there is
nothing improper in stating that, for rational reasons, more or less weight has been
given to a particular feature of a mark, provided the ultimate conclusion rests on
consideration of the marks in their entireties.” In re Detroit Athletic Co., 903 F.3d
1297, 128 USPQ2d 1047, 1050 (Fed. Cir. 2018) (quoting In re Nat’l Data Corp., 753
F.2d 1056, 1058, 224 USPQ 749, 751 (Fed. Cir. 1985)).
Applicant argues that consumers will perceive the literal portion of its mark as a
unit: SUMESA RANCHERITO, and that “the proximate arrangement of the two
terms leads the reader to view the two terms in combination and to read the two as a
single entity with the term ‘SUMESA’ coming first, which negates any potential
assumption of weight assigned to the second term.” 4 TTABVUE 10. Applicant
further argues, “the mark consists of three elements, with SUMESA up top and a
chick to the left. It is untrue that RANCHERITO is dominant and should be afforded
more weight.” Reply Brief, 7 TTABVUE 4. Applicant reasons: “the positioning of the
term ‘SUMESA’ above the term ‘RANCHERITO’ in combination with the framing of
the term ‘SUMESA’ in a bright red box draws the eye at least equally, if not primarily,
to the term ‘SUMESA’.” 4 TTABVUE 10. Although we agree that the term SUMESA
forms a separate impression within the mark, and will be perceived as a unique
element within the mark as a whole, the dominant term in Applicant’s mark is
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RANCHERITO because it is the largest term in the mark, is prominently outlined in
a black border, and is centrally located in the mark. However, even if SUMESA and
RANCHERITO were accorded equal weight, confusion would be likely because
consumers are likely to mistakenly perceive Applicant’s mark as identifying an
extension of the RANCHERO brand to a line of soups or seasonings sold by
SUMESA S.A.
Along these lines, the Examining Attorney argues that the addition of the
SUMESA house mark “will not obviate the similarities of the other elements of the
marks.” 6 TTABVUE 8. Applicant disagrees, arguing that “the addition of Applicant’s
house mark does significantly alter the similar commercial impressions created by
RANCHERO and RANCHERITO.” 7 TTABVUE 4. Whether the addition of a house
sufficiently obviates the overall similarities of the other elements of a mark to avoid
a likelihood of confusion depends on whether the marks in their entireties convey
significantly different commercial impressions. This may be shown by evidence
demonstrating that the matter common to the marks is not likely to be perceived by
purchasers as distinguishing source because it is merely descriptive or diluted.
Compare, e.g., In re Toshiba Med. Sys. Corp., 91 USPQ2d 1266, 1271 (TTAB 2009)
(holding VANTAGE TITAN for MRI diagnostic apparatus, and TITAN for medical
ultrasound device, likely to cause confusion) with In re Shawnee Milling Co., 225
USPQ 747, 749 (TTAB 1985) (holding GOLDEN CRUST for flour, and ADOLPH’S
GOLD’N CRUST and design (with “GOLD’N CRUST” disclaimed) for coating and
seasoning for food items, not likely to cause confusion). See also Citigroup Inc., 98
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USPQ2d at 1261 (affirming the Board’s holding that contemporaneous use of
applicant’s CAPITAL CITY BANK marks for banking and financial services, and
opposer’s CITIBANK marks for banking and financial services, is not likely cause
confusion, based, in part, on findings that the phrase “City Bank” is frequently used
in the banking industry).
Applicant has not adduced any evidence in support of an argument that the term
RANCHERO is weak or diluted. Applicant’s house mark forms its own, separate,
commercial impression apart from the rest of the mark, which makes it likely
consumers will believe the mark identifies the “Rancherito” line of “Ranchero”
products from Sumesa. The RANCHERITO portion of Applicant’s mark is dominant.
For these reasons, the overall commercial impressions of both marks are similar.
Applicant further argues that the unique color scheme and baby chick design of
its mark distinguish the marks: “looking at [Applicant’s] marks (sic) as a whole, it is
a distinctive design [distinguishable] from the standard characters of the cited
registration. . . . The colors white, red, black, orange, and yellow are claimed as a
feature of the mark. . . . A baby chick is standing to the left of the word
‘RANCHERITO’, which further emphasizes the diminutive and fanciful meaning of
the word.” 4 TTABVUE 11.
“In the case of a composite mark containing both words and a design, ‘the verbal
portion of the mark is the one most likely to indicate the origin of the goods to which
it is affixed.’” Viterra, 101 USPQ2d at 1908 (quoting CBS Inc. v. Morrow, 708 F. 2d
1579, 1581-82, 218 USPQ 198, 200 (Fed. Cir 1983)); Joel Gott Wines, LLC v. Rehoboth
Serial No. 88584024
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Von Gott, Inc., 107 USPQ2d 1424, 1431 (TTAB 2013) (finding words normally given
greater weight “because they would be used by consumers to request the products”)
(citing In re Dakin’s Miniatures, Inc., 59 USPQ2d 1593, 1596 (TTAB 1999)); In re Max
Capital Grp. Ltd., 93 USPQ2d 1243, 1248 (TTAB 2010) (holding applicant’s mark,
MAX with pillar design, and registrant’s mark, MAX, likely to cause confusion, noting
that the “addition of a column design to the cited mark . . . is not sufficient to convey
that [the] marks . . . identify different sources for legally identical insurance
services”). The chick design of Applicant’s mark does not distinguish the marks, but
brings to mind the related nature of the goods involved in each, namely, chicken soup
and bouillon, and chicken-flavoring soup seasoning.
Moreover, the fact that the cited registered mark is in standard characters allows
Registrant to display the mark in any font style, color or size. While this does not
necessarily permit Registrant to include a similar chicken design as part of its mark,
Registrant may display its RANCHERO mark in the same font style as Applicant
utilizes for its RANCHERITO lettering. In re Aquitaine Wine USA, LLC, 126 USPQ2d
1181, 1187 (TTAB 2018) (“We hold that when we are comparing a standard character
mark to a word + design mark for Section 2(d) purposes, we will consider variations
of the depictions of the standard character mark only with regard to ‘font style, size,
or color’ of the ‘words, letters, numbers, or any combination thereof.’”). Applicant
cannot avoid likelihood of confusion with the cited mark on this basis.
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We find that the marks are similar in sight, sound, meaning and overall
commercial impression. The first DuPont factor weighs in favor of finding a likelihood
of confusion.
C. Consumer Sophistication
Applicant argues that consumers of soups and seasonings are discerning
customers:
Although soups and seasonings are not necessarily
expensive items, they are food products that people buy to
feed themselves and their families. People are discerning
when they are choosing among food products, and
especially when it is a food product they will be feeding to
their children and families. People today are health
conscious, and many scrutinize packaging and nutrition
labels to be informed about exactly what they are
consuming.
4 TTABVUE 15.
Applicant has provided no evidence to support this assertion and we therefore
accord less credence to Applicant’s suggestion that conditions of sale mitigate any
likelihood of confusion. But even were we to accept Applicant’s premise that the
relevant class of buyers may exercise care, such “does not necessarily impose on that
class the responsibility of distinguishing between similar trademarks for similar
goods. ‘Human memories even of discriminating purchasers ... are not infallible.’” In
re Research and Trading Corp., 793 F.2d 1276, 230 USPQ 49, 50 (Fed. Cir. 1986),
cited in In re Info. Builders Inc., 2020 USPQ2d 10444, *4 (TTAB 2020) (internal
quotes omitted). Moreover, soups and seasonings are relatively low-cost items, and
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not all consumers are health-conscious consumers. We must base our decision “on the
least sophisticated potential purchasers” at issue. Stone Lion, 110 USPQ2d at 1163.
This DuPont factor is neutral.
II. Conclusion
We have considered of all of the evidence and arguments as they pertain to the
relevant DuPont likelihood of confusion factors. We find that the applied-for mark is
similar to the cited registered mark, that the identified goods are legally identical,
and are presumed to travel through the same or overlapping channels of trade to the
same or overlapping classes of customers. The consumers have not been shown to be
sophisticated. For these reasons, we conclude that Applicant’s applied-for mark
as used in connection with both classes of goods identified in the
application, so resembles the cited registered mark RANCHERO as to be likely to
cause confusion or mistake, or to deceive relevant consumers under Section 2(d) of
the Trademark Act. 15 U.S.C. § 1052(d).
Decision: The refusal to register Applicant’s mark is affirmed.